19900109 TZHC Dar es Salaam 1

IN W~HIGH COURT OF TANZ..U.MlA 11.T DAR ES SAL.li.Alvl liIGH COURT CRIMINAL AP.f>EilL NO. 182 OF 19.88 {4-iginal Crifilinal Case 10.435 of 1982 of tb.e Dis~i.o~t. .c,.f Tlala Dist.ri.c-t. e.t Ki~oni Before E. Hosea, Bsq., Senior D, i~lagistrat~ RWANDA 11.PPELLi~NT · Versus T.HE .B,EPJ.lRLJ; C .......... ·• ....... •·•· ., . RESPONDENT J U D G ME N T . lq.._-~ ..ll.RD~I AR .BJUNl)JI. rn ..o.o.nu;.i,-ctad a-€- ~ with ~ ':11.--;- ~ntenGed to- s.e-von years imprisonment.. .lie- :t:1.QJ1t a..1>peals uatnel ihe .oonvi◊ti.on and. s-entence. ;t 'rhe gun which is said to have been robbed from D111 P/C. R a ~ • ~ ;he night of 28th May, 1982 was rec·overed from_ the appellant. an tlW saae ntghte Ac-0ording to the evidence of D111 P/C Raphael (PW3}> .tb,.a SJ.)pellant had snatched the gun and ran away 1.eaving behind his bicycle i ~ -~·we.r.e -Six £.an.s. on the hind seat. ~he appellant had no receipts ,f~ the !ans and was being taken to the police.~tation on suspicion of haiinij GtQ~en-the fans when he bolted and ran away. This story of ~P~ £.r0u, justice ... v.as disputed by the appelh.nt; the appellant testifie.d .t,lla.t.. ;the.. . a r ~ ~ .Qffi..car (.PW3) was bei;l...ting him up with the but of the gun which he later snat,ched away in self defence. The learned tri.al magistrate accepted the prosecution case and went on to conv:ic·t .. In admitting the appeal, my learned brother (Kyando., J.) wanted the court to "consider whether what the uppellant did amounted to 1 ~rob-b-ary•'." I have no hesitation in holding that whether one accepts the ~rosccution story.i.e. that the appellant had snatched PW3's gun and escaped from lawful arrGst or that of the appellant i.e. that he snatched the. gr I i in self defence and ran away, the conviction of the appell~nt for }oh~ery with violence was not proper. The appellant did i I - 2 - not com~it robbery. s.285 of the Penal Code provides: ".i.inY person who steals anything, and, at or i~medi~tely before or imLlediately after the tirae of stealing it, ·uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to preTent or overcome resistance to its being stolen or retained, is guilty of the felony termed 'robbery'." The use of violence by the appellant was to facilitate his escape - that is if one accepts the prosecution case or if one accepts the appellant's case, the use of force by the appellant w·c:1s i11 self defence. In either case, the appellant i s ~ shown to have intended to steal ·PW3's gun and tha~ in the process of stealing it had used force to obtiin or -- .re.ta.in it. The ingredients of robbery are wissing. Vlha t later transpired 1.e. that 'th~ ~pall.ant. had not nandQ-d the gun to the poiice but had instead hidden it somewhere near the. National Stadium does not change the nature of tho offence. Accordingly I allow the appeal. The conviction entered against the appellant is quashed and the sentence of seven years imprisonment set aside. It is hereby ordered that the appellant be set free at once unless he is otherwise bsing lawfully held in custody on another matter. ~-''l(<', \ ~ ) , , ~ Yahya Rubawa Judge 9. 1 • 90